01A30419_r
03-26-2003
Daniel E. Hill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel E. Hill v. United States Postal Service
01A30419
March 26, 2003
.
Daniel E. Hill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30419
Agency No. 1-H-321-0142-98
Hearing No. 150-A2-8465X
DECISION
Complainant appeals to the Commission from the agency's September 9, 2002
decision finding no discrimination. In his complaint dated November 4,
1998, complainant alleged that he was subjected to discrimination on the
bases of age (DOB: December 4, 1941), disability (stress) and reprisal
for prior EEO activity when on March 6, 1998, he had a discriminatory
conversation with management regarding an assault on him that had taken
place in December 1992.
The record reveals that, at the time of the alleged incident, complainant
worked as a Supervisor at the agency's Daytona Beach, Florida, Production
and Distribution Center. The complainant sustained a traumatic injury
to his left hand while performing official work duties on December 2,
1992. The injury occurred when a tour superintendent pushed a door into
complainant's left hand. On March 6, 1998, complainant had a conversation
with an Inspector about the assault on him that had taken place in
December 1992. During the conversation, complainant also discussed the
removal of one of his witnesses, who testified at his Office of Workers'
Compensation Programs (OWCP) hearing. Complainant reported that he asked
the Inspector why he had never investigated the superintendent, who caused
complainant's injury and why was this man still working for the agency.
Complainant noted that the Inspector said that his witness had lied and
that complainant did not have an accident. According to complainant, his
witness prevailed in an MSPB case regarding the witness' termination as
the MSPB judge did not place much credibility in the agency's testimony.
In summary, complainant indicated that his complaint was based on
the fact that he told the Inspector about a crime and he did nothing
about it. Complainant felt that it was a violation of his civil and
constitutional rights and that the Inspector, by his inaction, failed
to protect him. Complainant mentioned that the Inspector told him that
he was not concerned, that it was none of his business, that complainant
could notify anybody he wanted to, and that he did not care. Complainant
mentioned that he was hurt by another employee and the Inspector took
no action. Complainant remarked that the Inspector was a federally sworn
law enforcement officer and by law he must investigate any criminal act
that was reported to him. Complainant felt the Inspector's failure to
act made the Inspector a criminal.
The Inspector reported that his contact with complainant related to an
investigation he conducted regarding the testimony in relation to the
accident. The Inspector said that he found no evidence that a crime had
been committed. The record reflects that complainant was advised that
his compensation claim had been reviewed and that it was determined that
an investigation by the agency's Inspection Service was not warranted
as no fraudulent actions existed. Although his compensation claim
with the Department of Labor was initially disallowed in April 1997,
that decision was subsequently vacated in September 1999.
On August 20, 2002, an EEOC Administrative Judge (AJ) dismissed the
case pursuant 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The AJ specifically found that complainant had not been aggrieved
by the alleged agency action and that the complainant was attempting
to re-litigate an issue that had been previously resolved through an
internal agency investigation. The agency, on September 9, 2002, issued
a decision finding no discrimination.
The regulation set forth at 29 C.F.R. 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. 1614.103,
106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Here, complainant contends that the Inspector lied and fabricated
statements to discredit his OWCP case. The Commission has repeatedly
found that remarks or comments unaccompanied by a concrete agency
action are not a direct and personal deprivation sufficient to render
an individual aggrieved. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal
Service, EEOC Request No. 05940695 (February 9, 1995). Based on a review
of the record, we do not find that the alleged comments were followed
by any concrete action. Therefore, we find that this conversation did
not render complainant an "aggrieved" employee. Accordingly, we agree
with the AJ that complainant's complaint fails to state a claim and
is properly dismissed pursuant to � 1614.107(a)(1). Because of our
disposition, we do not reach the merits of the complaint.
The agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 26, 2003
__________________
Date